Rosinski: Standing to Challenge VA Policy Re: Access to Preliminary Decisions
/Rosinski v. Shulkin, 29 Vet.App. 183 (Jan. 26, 2018) (per curiam order)
HELD: Attorney lacks standing to challenge VA policy limiting access to preliminary VA rating decisions to VSOs.
SUMMARY: VA has a policy that allows VSOs access to preliminary rating decisions before they are promulgated, which enables VSOs to identify any clear errors before the decisions are issued. VA limits this access to VSOs and does not provide attorneys who represent veterans with access to these preliminary decisions. An attorney challenged this policy as impeding his ability to provide competent representation, violating his rights as an accredited representative, and denying his clients fair process.
The Court held that the attorney lacked standing to challenge this policy because he did not establish that he suffered an injury (economic harm) as a result of the policy or demonstrate that the policy preventing him from representing his clients. Because the attorney lacked standing and did not show that he had asserted “a claim typical of a class,” the Court further denied the attorney’s motion for aggregate action.
In a footnote, the Court stated that it did not hold that “attorneyscategorically lack standing to challenge VA’s policy, only that Mr. Rosinski has not demonstrated that he has standing on the facts of this case.”
In a concurring opinion, Chief Judge Davis wrote that the “increased involvement of attorneys in the adjudication process . . . suggests that the disparate treatment of VSO representatives and attorneys . . . may no longer be rationally justified.”
